Articles Posted in Manhattan

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This action arises from a motor vehicle accident that occurred on April 20, 2008. The complainant man’s vehicle was impacted from the rear by the accused man’s vehicle, while both vehicles were moving in the same lane of travel. The accused man’s vehicle was operated by his son at the time of the accident. As a result of the accident, the Long Island complainant claims to have suffered serious and permanent spinal injuries, including restricted range of motion in the areas of his lumbar and cervical spine.

Based upon his bill of particulars, the complainant is asserting claims of permanent consequential and significant limitation of use of a body function or system, and a medically determined injury or impairment of a non-permanent nature, which prevented him from performing substantially all of his customary daily activities for not less than 90 days during the 180 days immediately following the accident claim.

It is well recognized that summary judgment or judgment without trial is a drastic remedy and as such should only be granted in the limited circumstances where there are no triable issues of fact. Summary judgment should only be granted where the court finds as a matter of law that there is no genuine issue as to any material fact. The Court’s analysis of the evidence must be viewed in the light most favorable to the complainant.

A party moving for summary judgment must make a legitimate showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact. The accused parties must demonstrate that the complainant did not sustain a serious injury within the meaning of Insurance Law as a result of the accident. The accused parties have met their burden.

In support of their motion, the accused have submitted the complainant’s bill of particulars, the complainant’s deposition testimony, and the affirmed reports of the accused parties’ examining Manhattan orthopedic surgeon and radiologist.

On January 6, 2011, the accused parties’ examining radiologist reviewed the cervical and lumbar spine MRI studies taken on April 28, 2008 and May 20, 2008, respectively. Upon review, the radiologist set forth his impressions that the complainant suffers from multi-level spine injury, and that the findings on the MRI are not causally related to the reported accident of April 20, 2008. In addition, the radiologist did not find any disc herniations or bulges in the cervical spine, and only mild bulging in the lumbar spine that he attributes to the degenerative disease.

The MRI report of the cervical spine dated April 28, 2008 notes two bulging discs, which cause a slight spinal injury. The MRI report of the lumbar spine dated May 20, 2008 notes a herniated disc in the lumbar spine, also contributing to a slight spinal injury. Those MRI reports do not mention any degenerative disc disease, nor do they relate the findings to the subject accident.

Although the MRI reports and the radiologist’s review of same differ in various respects, the Court notes that, a tear in tendons, as well as a tear in a ligament or bulging disc is not evidence of a serious injury under the no-fault law in the absence of objective evidence of the extent of the alleged physical limitations resulting from injury and its duration. Thus, whether or not the radiologists agree on the interpretation of the MRI studies, the complainant must still exhibit physical limitations in order to sustain a claim of serious injury within the meaning of the Insurance Law.

The complainant was examined by the accused parties’ examining orthopedic surgeon, on January 21, 2011. The orthopedic surgeon reviewed a number of the complainant’s medical records, including the bill of particulars, MRI and nerve study reports, physical therapy and acupuncture notes, and the reports of the complainant’s doctors and chiropractor. He measured range of motion in the complainant’s cervical and lumbar spine areas with a goniometer. He also conducted various, other tests, including reflex, which were negative. He set forth his specific findings, comparing those findings to normal range of motion, and he concluded that the complainant’s cervical and lumbosacral strains are resolved. According to the orthopedic surgeon, the complainant does not exhibit any objective evidence of a disability, is capable of full time, full duty work, and is capable of carrying on his activities of daily living.

Examining the reports of the accused parties’ physician, there are sufficient tests conducted set forth therein to provide an objective basis so that his respective qualitative assessments of the complainant could readily be challenged by any of his expert(s) during cross examination at trial, and be weighed by the trier of fact. Thus, the accused parties have met their burden with respect to the permanent consequential and significant limitation of use categories of injury. As to whether or not the accused parties have sustained their burden on the 90/180 days injury claim, the Court considers the complainant’s deposition testimony submitted with the instant motion.

An accused may establish through presentation of a complainant’s own deposition testimony that a complainant did not sustain an injury of a non-permanent nature which prevented him from performing substantially all of the material acts, which constitute his usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence. Moreover, a complainant’s allegation of curtailment of recreation and household activities and an inability to lift heavy packages is generally insufficient to demonstrate that he or she was prevented from performing substantially all of his customary daily activities for not less than 90 days during the 180 days immediately following the accident.

The complainant’s deposition testimony establishes that he was working as a deliveryman at a deli prior to the accident, and that he missed only one week of work following the accident. He further admitted that he was not told by any medical professional that he could not work following the accident. Upon his return to work, he apparently suffered no change in his duties, and continued to work at the deli for almost three more years. He only ceased working at the deli because he moved to a different county. He further testified that he is currently unemployed and is not actively seeking employment.

As to his specific injuries, the complainant testified that he refused to go to the hospital on the date of the accident despite feeling pain in his neck, in addition to a headache. According to him, he received physical and chiropractic treatment through November or December 2008, at which time he ceased treatment. He did not offer a reason for his cessation of treatment. He admitted to taking only an over-the-counter pain reliever since the accident.

Aside from missing one week from work, the complainant testified that he can no longer play soccer because his lower back hurts, and that he can no longer go dancing because it hurts his back to do so. According to him, he used to play soccer with friends and go dancing once or twice a month before the accident. He also testified that he cannot carry his children, whose ages as of the deposition date in December 2010 were nine, six and four years old, or clean the bathtub. He was not forced to hire help for household chores, and he testified that he can lift grocery bags up to thirty (30) pounds. He had no future medical appointments at the time of his deposition.

Thus, the accused parties’ submission of the complainant’s deposition testimony, and affirmation of the accused parties’ physician are sufficient herein to make a legitimate showing that the complainant did not sustain a serious injury within the meaning of Insurance Law, under permanent consequential limitation and significant limitation categories of the applicable law, nor under the 90/180 category of the law.

The complainant is required to come forward with viable, valid objective evidence to verify his complaints of pain, permanent injury and incapacity. The complainant has failed to meet his burden. In opposition to the accused parties’ motion, the complainant has submitted the MRI reports previously referred to above, physical therapy and acupuncture notes, chiropractic evaluations, a pain management consultation report, and an affirmed report from his treating osteopath.

The osteopath doctor’s affirmed report fails to set forth by what means, or with what instrument, the complainant’s range of motion in the cervical and lumbar spine areas was measured. Thus, the accused has failed to establish an objective basis so that the respective qualitative assessments of complainant could readily be challenged by any of the complainant’s expert(s) during cross examination at trial, and be weighed by the trier of fact. In addition, the osteopath doctor’s report does not indicate with specificity when the examination results were obtained. Contrary to the complainant’s deposition testimony wherein he stated that he was not working because he had moved, the osteopath doctor noted that the patient was not working because of the accident. He was totally disabled. The osteopath doctor notes that the complainant’s gait was not counteracting. Thus, his report appears to be inconsistent with the complainant’s testimony and internally inconsistent as to the level of the complainant’s alleged disability.

Moreover, the osteopath doctor stated in his opinion and prognosis section that, in such type of injury there are nerves and disc pathologies as well as tearing of soft tissue components without addressing the degenerative disc disease findings of the radiologist, or the complainant’s previous accident. He also opines in general terms that there can be permanent limitations of motion to the cervical and lumbar spine due to the injuries sustained. He states in vague terms that, the patient remains impaired with regard to some functional capabilities thus his opinion that the complainant has sustained traumatic injuries as a direct causal result of the accident is rendered speculative and insufficient to raise a triable issue of fact.

The pain management physician also examined the complainant on November 25, 2008. Although he wrote that the complainant’s level of activity is severely limited, he did not report the basis for that conclusion. Instead, he noted that the complainant’s pain, at its worst, is 3 out of 10, and that the complainant continues to work as a driver. The pain management physician further states that the complainant is not limited in activities of daily living and that the complainant’s pain does not interfere with the quantity and quality of his sleep, which the complainant reported as being six hours of restorative sleep. The pain management doctor concluded that the complainant has done well with therapy and his pain is minimal he has a mild partial disability from the motor vehicle accident dated 4/20/2008. The conclusion in November 2008 is markedly at odds with his initial statement that the complainant’s level of activity is severely limited, and also at odds with the osteopath doctor’s October 2011 report that the complainant has sustained traumatic injuries.

For all the foregoing reasons, the Court has determined that the complainant has failed to raise a triable issue of fact with respect to the issue of serious injury within the meaning of Insurance Law. Accordingly, the accused parties’ summary judgment motion is granted in its entirety, and the complaint is dismissed.
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This is an action to recover damages for personal injuries allegedly sustained by plaintiff in a motor vehicle accident on January 19, 2008 within a private parking lot on route 107, near its intersection with Lewis Street, in the town of Oyster Bay, Nassau County, New York.

A said that, in his bill of particulars, plaintiff alleges that he sustained the following injuries which are alleged to be permanent: Cervical muscle spasm, cervical radiculopathy, neck painwith upper extremity weakness, lumbar radiculopathy, right and left shoulder pains with numbness and tingling, decreased range of motion of the cervical spine, low back pain with lower extremity weakness, subluxation of the cervical spine and lumbar spine, headaches, muscle spasm of the lumbar spine, decreased range of motion of the cervical and lumbar spine injury, mid back pain, dizziness, inability to sit or stand for prolonged periods of time, difficulty performing everyday activities such as bending, lifting, and sitting necessity for prescribed pain medications, necessity for physical therapy, sleep disturbances, cervical spine tenderness with restricted range of motion, lumbrosacral spine tenderness with restricted range of motion, necessity for extended physical therapy, unable to perform household chores and loss of enjoyment of life.

Plaintiff was involved in a prior motor vehicle accident in 2002 whereby he injured his neck, lower back, and shoulders. A Manhattan doctor said that, defendant claims that the injuries plaintiff complains of in this accident of 2008 are not causally related to the 2008 motor vehicle accident, but rather are permanent injuries resulting from the 2002 accident. Defendant has presented objective medical testing from 2002 in order to establish the preexisting injuries at the time of the 2008 accident. The MRI report dated February 25, 2002 indicated posterior disc bulge at L3-L4 and at L5-S1 impinging on the spinal injury canal. The report of August 29, 2002 indicated posterior disc bulges at C-5-6 and at C6-7 impinging on the anterior aspect of the spinal canal.. Therefore, plaintiff had bulging discs with impingement six years prior to the subject accident. Further, the nerve conduction examination performed on November 4, 2002 revealed abnormal results. The examining doctor states that “any scores falling in the abnormal range recognize a possible entrapment of the nerves and indicate that a problem exists.” The electromygram exam performed by plaintiff’s physician on November 20, 2002 after the prior accident was abnormal showing a mild right acute C6 radiculopathy. More recently, plaintiff’s treating Westchester chiropractor, issued a report dated March 16, 2010 in which she opined that plaintiff suffered a permanent consequential disability with regard to his cervical and lumbar spine and is unable to perform his normal activities of daily living as a result of the accident on August 24, 2002. Defendant claims that the evidence demonstrates that any permanent and consequential injuries and plaintiff’s inability to perform activities of daily living were a result of the prior accident in August 2002 and not the subject accident on January 18, 2008.

As a result of the motor vehicle accident on January 19, 2008, plaintiff was taken to NUMC where x-rays were taken at the emergency room. The physician who interpreted the x-rays of his lumbar and thoracic spine reported no fractures, dislocation, or other significant bony abnormalities and reported that the intervertebral disc were normal in height. Defendants also submit plaintiff’s deposition whereby plaintiff admitted that after the accident of 2008, plaintiff first sought treatment 2-3 days after the accident for physical therapy, and then received treatment for six to seven months thereafter. There is a gap in treatment by plaintiff’s own admission. Finally, defendant submits an affirmed report from an orthopedic surgeon, who examined plaintiff and performed a range of motion tests using a goniometer a well as other clinical tests, and found that plaintiff’s cervical strain with radiculitis, thoracolumbosacral strain, and bilateral shoulder contusion were all resolved. Defendants conclude by stating that there is no medical evidence to support plaintiff’s claim that he was unable to work for 8 months and was prevented from performing substantially all of his customary daily activities for at least 90 days of the last 180 days.

A Lawyer said that, defendant filed a motion for summary judgment dismissing the complaint on the grounds that plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d).

The issue in this case is whether plaintiff sustained serious injury as the result of the motor vehicle accident.

The Court said that, as a proponent of the summary judgment motion, defendants have the initial burden of establishing that plaintiff did not sustain a causally related serious injury under the permanent consequential limitation of use, significant limitation of use and 90/180-day categories. Defendant’s medical expert must specify the objective tests upon which the stated medical opinions are based and, when rendering an opinion with respect to plaintiff’s range of motion, must compare any findings to those ranges of motion considered normal for the particular body part.

The Court held that the defendants established their entitlement to judgment as a matter of law by submitting, the affirmed medical report of the doctor who examined the plaintiff in 2009 and found no significant limitations in the ranges of motion with respect to any of his claimed injuries, and no other new serious injuries within the meaning of Insurance Law § 5102(d) causally related to the collision in 2008. Defendant has shown the pre-existence of spinal injuries claimed by plaintiff relating to the 2002 motor vehicle accident. Moreover, a defendant who submits admissible proof that the plaintiff has a full range of motion, and that she or he suffers from no disabilities causally related to the motor vehicle accident, has established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The burden now shifts to plaintiff to demonstrate, by the submission of objective proof of the nature and degree of the injury, that he sustained a serious spinal injury caused by the motor vehicle accident of 2008.

In order to satisfy the statutory serious injury threshold, a plaintiff must have sustained an injury that is identifiable by objective proof; subjective complaints of pain do not qualify as serious injury within the meaning of Insurance Law § 5102(d). Plaintiff must come forth with objective evidence of extent of alleged physical limitation resulting from injury and its duration. That objective evidence must be based upon a recent examination of the plaintiff. Where, as here, plaintiff sustained spine injury as a result of a prior accident, the plaintiff’s expert must adequately address how plaintiff’s current medical problems, in light of his past history, are causally related to the subject accident. Even where there is medical proof, when contributory factors interrupt the chain of causation between the accident and the claimed injury, summary dismissal of the complaint may be appropriate.

In opposition, plaintiff submitted an affidavit dated January 26, 2011 from her treating chiropractor, which is deficient. The statements made by the chiropractor that the injuries are causally related to the 2008 accident are conclusory and purely speculative. In the absence of an explanation by the plaintiff’s expert as to the significance of the degenerative findings and the prior accident, it would be sheer speculation to conclude that the accident of January 19, 2008 was the cause of plaintiff’s injuries. She does not address the findings on the MRI’s of plaintiff’s cervical and lumbar spine, positive nerve conduction and EMG testing that were present six years before the 2008 accident. Further, the affidavit is not based upon a recent examination of plaintiff. There is also no explanation provided by the chiropractor as to why her affidavit of January 26, 2011 contradicts the statement made in her report of March 16, 2010 that plaintiff suffered a permanent consequential disability with regard to his cervical and lumbar spine and is unable to perform his normal activities of daily living as a result of the accident on August 24, 2002.

Finally, there is also no explanation provided as to plaintiff’s gap in treatment after the 2008 accident. In order to survive summary judgment “a plaintiff who terminates therapeutic measures following the accident, while claiming ‘serious injury,’ must offer some reasonable explanation for having done so “. Plaintiff’s submissions are insufficient to rebut the prima facie case established by defendants entitling them to summary judgment as a matter of law. Accordingly, the Court held that defendants motion for summary judgment is granted.
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A man working as a millwright for a saw mill in Florida had been working at the same saw mill for the past twenty-four years. His job required him to do heavy manual labor consisting of bending from the waist to lift heavy objects and carrying the heavy objects. As time went on, the millwright gradually experienced pain in his right leg and hip. There was no specific incident that caused any spinal injury to the millwright during the course of his employment. The pain soon interfered with his duties at the saw mill and this prompted him to consult an orthopedic surgeon who immediately placed him on no-work status and referred him to a neurologist for testing.

The Long Island neurologist ran medical tests and scans on the man’s spine. The tests showed that the man had stenosis or a narrowing or choking of the spinal nerve roots in his neck and lower back. The compression of the spinal nerve roots cause the shooting pain in his hip and right leg. Spinal stenosis is a degenerative disease that occurs from repetitive bending and lifting of heavy objects.

The neurologist and the orthopedic surgeon both found that the man suffered from a degenerative disk disease and L3-4 herniated disk. They advised the millwright to take medication, sufficient rest and physical therapy to stop the pain and to arrest the further damage to his spine. The employer refused to pay the millwright’s claim for compensation and filed a complaint with the Compensation Commission.

The Judge of Compensation Claims found that stenosis is compensable because it is subsumed under “repetitive trauma theory.” He based his findings on the testimony of both the neurosurgeon and the orthopedic surgeon that the twenty-four years of consistent and repetitive lifting and bending while he worked as a millwright caused the disease. Repetitive trauma to the man’s spine caused his spinal injury.

The employer appealed the decision of the judge of compensation claims. In his appeal he claims that it was error to find that the stenosis was compensable. He posits that there was no injury or any specific event that can be pointed to as the proximate cause of the stenosis. He also claims that the stenosis was a preexisting condition which is not compensable.
The only question before the Court is whether or not the spinal injury of the millwright is compensable injury.

The Court held that the stenosis was not a preexisting condition or a preexisting disease. A preexisting condition is something personal to the employee, a medical condition that the employee brought to the workplace and exists independent of any contribution from any work-related injury and which may be aggravated by employment. If the stenosis of the millwright were a pre-existing condition then it is not compensable. In this case, the millwright did not have stenosis when he began working at the saw mill. The stenosis gradually developed over time because he over-used his back and his leg when he repeatedly bended over to lift heavy loads in the course of his employment.

The millwright and his Manhattan doctors all testified that he suffered prolonged exposure to the bending and lifting activities in the regular discharge of his duties at the saw mill. The doctors also testified that the prolonged repetition of bending and lifting has the cumulative effect of injuring or aggravating the spinal injury of the millwright. His work at the saw mill exposed him to a hazard for stenosis that is greater than the usual hazards that the general public is exposed to.

Under the repetitive trauma theory of compensability, there is no need to prove one specific instance of injury. Instead, the millwright need only show that each bump, strain and sprain which he routinely experienced in the long years at the same job is regarded as an accidental occurrence which led to his disability and need for treatment.

The Court found that the spinal injury suffered by the millwright is compensable.
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The Manhattan plaintiff alleges that on or about November 29, 2001 through December 13, 2001 he came under the medical care and treatment of MD, a physician specializing in the field of transplant surgery. On or about May 2001 through June 13, 2002, the plaintiff came under the care of MD2., a physician specializing in the field of internal medicine. He also came under the care of the defendant MD3, M.D. who holds himself out as a Long Island physician specializing in surgery. From about November 28, 2001 through December 13, 2001, the plaintiff came under the care of a Memorial Hospital located in Rochester, New York where he had his kidney donor surgery performed. The plaintiff claims, inter alia, that the defendants were negligent in his care and treatment in failing to properly perform a laparoscopic donor nephrectomy; prematurely discharging him after the surgery with a retroperitoneal hematoma; causing the pancreas injury and failure; causing an inflammatory nidus and pancreatic pseudocyst; in causing a pancreaticocolenic fistula; causing the plaintiff to undergo exploratory laporatomy and drainage of a large intra abdominal abscess and closure of a colonic fistula, and causing the plaintiff to undergo a colosotomy and colostomy take-down surgical procedure to the pancreas.

MD2 seeks an order granting summary judgment dismissing the complaint asserted against him on the basis that he did not depart from good and accepted medical practice during his care and treatment of the plaintiff and that the action is time barred as although the plaintiff saw MD2 on four occasions following his surgery, all MD2 did was order laboratory tests and CT scans and then refer the plaintiff for surgical management. MD2 claims his last involvement with the plaintiff was on January 2002 and the action was not commenced until September 2004.

MD3, who is represented by the same attorneys as MD2 seeks summary judgment dismissing the complaint on the basis that there were no departures by him that proximately caused the plaintiffs spinal injuries.

Based upon the foregoing, it is determined that there are factual issues raised by the plaintiffs expert on the issue of negligence which preclude the granting of summary judgment dismissing the complaint against MD3. In that MD1 did not comment on the issue of informed consent, the burden did not shift to the plaintiff to raise a factual issue as to lack of informed consent.

Accordingly, that part of motion (001) for dismissal of the complaint as asserted against MD3. is denied as to the causes of action premised upon negligence and informed consent.

Turning to motion (002) the defendants, MD1 and the Memorial Hospital, seek to preserve their right under Article 16 as against M.D2. and M.D3. at the time of trial in the event that this Court should grant MD2 and MD3 summary judgment dismissing the complaint against them.

It is determined that in light of the motion for summary judgment having been denied and the complaint was not dismissed as asserted against MD2 that part of the moving defendants’ application has been rendered academic and is denied as moot
Turning to that part of the motion by defendants MD1 and the Memorial, it is determined that the moving defendants have not demonstrated entitlement to the relief requested. Article 16 of the CPLR provides for several liability for non-economic loss when the liability of a joint tortfeasor is found to be fifty percent or less of the total liability assigned to all persons liable, subject to specified exceptions, see, CPLR 1601; Maria E. v West Associates. 188 Misc 2d 119 [Sup Ct, Bronx County, 2001]). In Yanatos v Pogo et ah (Spinola, J.) (Sup Ct Nassau, April 25, 2006), the court set forth that since a motion for summary judgment is the functional equivalent of a trial, it follows therefrom that any defendant intending to obtain the limited liability benefits of Article 16 of the CPLR must, under penalty of forfeiture, adduce proof on point in admissible form in response to the prima facie case presented, citing Drooker v South Nassau Communities Hospital. 175 Misc2d 181 [NY Sup. Ct. 1998]). In Drooker.supra, following the granting of summary judgment in favor of a physician in a medical malpractice case, the remaining defendants who failed to oppose said physician’s prima facie showing of entitlement to summary judgment and failed to make any evidentiary showing regarding that physician’s responsibility for plaintiffs spinal injury, thereby forfeited their opportunity to limit their liability with respect to that physician’s acts or omissions under Article 16 of the CPLR.
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Claimant, 49 years of age, worked in various positions at the employer’s saw mill, most recently as a millwright. Every position he held during his 24-year career involved arduous physical labor, including heavy lifting on a daily basis. Sometime in March 1998, claimant began experiencing pain in his hip and leg. He did not identify any specific incident that caused the pain, but pointed to a number of his job duties that involved heavy physical labor. According to the Queens claimant, the pain developed gradually. After learning from his family physician that the pain related to a back condition or back injury, claimant sought compensation benefits. The employer and carrier or E/C completely denied the claim, including the request for a medical treatment. On 29 April 1998, claimant came under the care of doctor-A, who is an orthopedic surgeon, who placed him on a no-work status. After testing, physical therapy, and consultation with another doctor, doctor-B who is a neurosurgeon, doctor-A diagnosed lateral recess stenosis with degenerative disk disease and L3-4 herniated disk. Thus, claimant filed a claim under the worker’s compensation for compensation benefits. Thereafter, the judge of compensation claims or the JCC, in resolving the claim for compensation benefits, found the stenosis compensable under a repetitive trauma theory based on claimant’s and doctor-A’s testimony, and concluded that claimant’s heavy lifting and repetitive bending while working for the employer over the course of more than 20 years ca
There are two issues raised by the E/C on appeal, viz: first, that the judge of compensation claims (JCC) erred in deciding that claimant provided timely notice of his work injury; and, second, that claimant suffered a compensable accident under a repeated trauma theory. On the second issue, E/C contends that the only competent, substantial evidence (CSE) established that claimant’s non-compensable herniated disk combined with his preexisting lateral recess stenosis to cause his disability and need for treatment, and no evidence was presented that the employment was the major contributing cause of same.

The court finds that CSE supports the JCC’s determination of the first issue. And, on the second issue, after applying the limited standard of review of CSE, the court finds it proper but not for all of the reasons mentioned. First, there was no burden on claimant to prove that the stenosis was the major contributing cause of the disability. The stenosis is not a preexisting condition and there was only one cause, rather than multiple causes, of claimant’s disability and need for treatment. Second, a combination of the evidence, both lay and medical, supports the JCC’s determination that the employment caused claimant’s disability and need for treatment.

The instant case is not a case in which a compensable injury is combined with a preexisting condition to cause or prolong a disability. It is true that claimant’s spinal stenosis or spinal injury preexisted claimant’s disability. However, this does not mean that it was actually a preexisting condition. Historically, this expression has been defined to mean something that is personal to the employee, an idiopathic condition which the worker brings to the workplace, that is, a condition or disease which exists independently of any employment contribution, although it may be later aggravated or accelerated by the employment. Here, it cannot be simply concluded from the evidence that the stenosis, which is itself the compensable injury, combined with a preexisting condition to cause or prolong disability or need for treatment. Moreover, the evidence shows that there was only one cause, rather than multiple causes, for claimant’s disability. The record before the court discloses, and the JCC implicitly found by granting benefits, that the employment-related injury was the only cause of claimant’s disability. Because there was only one cause, the burden imposed by the elevated major-contributing-cause standard is inapplicable. Although it is true that the JCC found that the major contributing cause of claimant’s stenosis was the repetitive work activity, this finding was unnecessary, because it implies that more than one cause combined to bring about the disability. As to the herniated disk, which the E/C claims joined with the preexisting spinal stenosis or spinal injury to cause the disability, the JCC essentially rejected doctor-A’s testimony that it was a contributing cause, finding instead that the hypothetical facts on which the Manhattan physician based his opinion were not supported by the trial testimony. Nonetheless, this finding has not been challenged on appeal. Thus, the court cannot review the soundness of its ruling. Additionally, it is unclear from the record when the herniated disk occurred. It could have taken place in September or October 1997, when claimant first sought medical care for back pain or back injury. The absence of proof as to its occurrence may have motivated the JCC to conclude that the disk herniation was not a cause of the disability arising in March 1998.

The question now is whether CSE supports the JCC’s causation determination. In answering this question, it is necessary to identify the appropriate causation test. As the law provides, to establish compensability, a claimant must demonstrate that he or she suffered an accidental injury arising out of work performed in the course and the scope of employment. To show that an injury arises out of work in a repetitive trauma case, the claimant is required to prove a prolonged exposure to a condition or activity, the cumulative effect of which is injury or aggravation of a preexisting condition, and that claimant has thereby been subjected to a hazard greater than that to which the general public is exposed. Alternatively, the claimant must show a series of occurrences, the cumulative effect of which is injury. Causation can be established through lay and medical testimony.

Here, claimant’s injury, specifically, spinal stenosis or spinal injury, is a classic example of a repeated trauma injury, one which is an exception to the ordinary situation involving injury by accident, where both the cause and the result are sudden. In the typical repetitive trauma model, the disabling condition is one that gradually arises over a protracted period of time, often years, as in the present case. Under this theory, each bump, scratch, strain, jar, irritation, noise, etc., is regarded as an accidental occurrence. Compensation is awarded due to the cumulative effect of a long series of such occurrences leading to the disability or need for treatment. It is clear in the case at bar that the lay and medical evidence supports the JCC’s finding that repetitive trauma arising from claimant’s work activity caused his disability. It must be noted that claimant first went to work at the employer’s saw mill during his early twenties when he was symptom-free; that he consistently performed heavy, manual labor over the course of his 24-year employment at the mill; and that he repeatedly pulled chains weighing 40 pounds, moved logs that were 12 inches in diameter and 20 feet long, stacked lumber in piles and moved them, lifted 50-gallon drums of oil, carried oxygen and acetone bottles weighing up to 60 pounds, pulled levers and cables that were the equivalent of 40 pounds, replaced saws, collars, chipper knives, and edging knives, all of which were heavy, and shoved heavy 200-horsepower motors across metal floors. There was no evidence presented that claimant had ever suffered any disabling condition before the compensable injury in question. Thus, basing on the activities which claimant was required to perform during his employment, the repetitive trauma elements of prolonged exposure and a greater hazard than that to which the general public is exposed has been complied with, along with the alternative test regarding the cumulative effect of the repetitive activities.

The rule has long been established that the resolution of causation issues is within the exclusive province of the judiciary and not the medical profession, and may be reached using a combination of medical and lay evidence. Lay testimony is of probative value in establishing the sequence of events, actual inability or ability to perform work, pain, and similar factors within the actual knowledge and sensory experience of the claimant. The requirement of presentation of medical evidence in situations involving non-observable injuries has not been overruled. The court has not read the ruling in the case of Closet Maid as overruling such requirement. In that case, the back injury which claimant suffered could be only recognized by a medical diagnosis. The court does find any basis for a reference to the medical testimony presented in Closet Maid, which seems to imply that spinal stenosis is invariably a preexisting, non-work-related condition. However, the facts in Closet Maid show that it was tried under a different theory from that of repetitive trauma. There, the claimant’s disabling condition and need for treatment followed a specific industrial accident, and the medical evidence identified claimant’s spinal stenosis as a personal, preexisting condition, and thus requiring an application of the major-contributing-cause-standard; also, a professor addressed the comparable problem of proving the compensability of heart-related conditions in the absence of evidence that there was a prior history of heart disease saying, that although there is no evidence in the record of a heart disease, that fact will be supplied by judicial notice, because the preponderance of medical theory holds that the worker must have had a preexisting heart disease, but, that this may actually contradict the record, which may contain undisputed testimony that the man was healthy and had no previous history of a heart disease. The legal answer is that the determination of preexisting heart disease is one of medical fact in the particular case. In addition, if another cause unrelated to the workplace existed in the record, this would warrant a reversal of the order but such is not the case. The somewhat unique nature of repetitive trauma injuries, in which, as stated, the disabling condition does not immediately arise following a single incident, but gradually occurs following a cumulative series of incidents over an extended time frame cannot be disregarded.

In sum, the court has a limited standard of review. The court’s function is only to review whether the record contains competent and substantial evidence to support the JCC’s decision, pursuant to the rules and the law. The court does not have the power and authority to assess whether it is possible to recite contradictory record evidence which supports an argument rejected in a lower forum; neither will the court retry the case and substitute its judgment for that of the JCC on factual matters supported by CSE. As a rule, a judge’s findings will be sustained if any view of the evidence and its permissible inferences will permit it. Although one might, in contravention of the court’s long-established review standards, refer to contradictory evidence in isolated portions of the record, a JCC’s determination of causation depends on the substance of all of the evidence, rather than on whether a medical witness’s testimony explicitly tracks the particular statutory language. Thus, since there is actually a competent and substantial evidence to support the JCC’s finding that repetitive trauma from claimant’s work activity caused his stenosis, and that the stenosis in turn resulted in the disability and/or need for treatment arising in March 1998, the court finds that the worker’s compensation order appealed from must be affirmed.
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This is an action to recover damages for personal injuries allegedly sustained by the plaintiff in a motor vehicle accident on June 24, 2006 at approximately 8:45 a.m. The accident occurred at Hill Avenue at its intersection with Hempstead Turnpike, Hempstead, New York. Plaintiff alleges that he was stopped at a red light when the vehicle owned and operated by defendant rear-ended plaintiff’s vehicle. The police accident report states that “motor vehicle #1 in collision with motor vehicle #2.”

In his bill of particulars, a Lawyer said that plaintiff alleges that he sustained the following injuries: subligamentous central posterior disc herniation at C4-5, subligamentous central posterior disc hernation at C5-6, impinging on the anterior aspect of the spinal canal posterior lumbar herniation at L4-5, and straightening of the lumbar curvature.

A Long Island doctor said that, defendant moves for summary judgment dismissing the complaint on the grounds that plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d). In support thereof, defendant relies uponplaintiff’s deposition testimony and an affirmed medical report of the doctor. At his examination-before-trial, plaintiff testified to his inability to perform activities due to his injuries sustained in the accident. Specifically, plaintiff was physically restricted and not able to swim, mountain bike and exercise.

On June 8, 2010, the doctor performed an independent orthopedic evaluation of plaintiff. His examination of the cervical spine revealed “maintenance of the normal cervical lordosis. Range of motion reveals flexion to 50 degrees (50 normal), extension to 45 degrees (45 normal), right and left lateral bending to 45 degrees (45 normal) and right and left rotation to 80 degrees (80 normal). There is right and left sided paracervical tenderness. There is no spasm noted upon palpation. Compression and Spurling tests are negative. Deep tendon reflexes are 2+ and equal in the upper extremities. Upper extremity strength is 5/5. There is no noted atrophy. Sensation is intact.” His examination of the thoracolumbar spine revealed “maintenance of the normal lumbar lordosis. Range of motion of flexion is to 90 degrees (90 degrees normal), extension to 30 degrees (30 degrees normal), right and left lateral bending to 30 degrees (30 degrees normal) and right and left rotation to 30 degrees (30 degrees normal). Straight leg raise testing is negative, performed to 90 degrees bilaterally in the sitting position. There is no paralumbar tenderness. There is no spasm noted upon palpation. Lasegue and Fabere tests were negative. Deep tendon reflexes are 2+ and equal. Lower extremity strength is 5/5. Sensation is intact. There are no signs of lower extremity atrophy.” His impression was: cervical sprain, resolved; lumbar sprain, resolved. Finally, he opined that plaintiff has “no orthopedic disability at this time and that there is no residual or permanency.”
The issue in this case is whether plaintiff sustained serious injury as defined under Insurance Law.

The Court said that, as a proponent of the summary judgment motion, defendant had the initial burden of establishing that plaintiff did not sustain a causally related serious injury under the permanent consequential limitation of use, significant limitation of use and 90/180-day categories. Defendant’s medical expert must specify the objective tests upon which the stated medical opinions are based and, when rendering an opinion with respect to plaintiff’s range of motion, must compare any findings to those ranges of motion considered normal for the particular body part.

The Manhattan defendants established their prima facie entitlement to judgment as a matter of law by submitting, the affirmed medical reports of the doctor who examined plaintiff in 2010 and found no significant limitations in the ranges of motion with respect to any of his claimed spinal injuries, and no other serious injury within the meaning of Insurance Law § 5102(d) causally related to the collision.

The burden now shifts to plaintiff to demonstrate, by the submission of objective proof of the nature and degree of the injury, that she sustained a serious injury or there are questions of fact as to whether the purported injury, in fact, is serious. In order to satisfy the statutory serious injury threshold, a plaintiff must have sustained an injury that is identifiable by objective proof; subjective complaints of pain do not qualify as serious injury within the meaning of Insurance Law § 5102(d).

Plaintiff must come forth with objective evidence of the extent of alleged physical limitation resulting from injury and its duration. That objective evidence must be based upon a recent examination of the plaintiff. Even where there is medical proof, when contributory factors interrupt the chain of causation between the accident and the claimed injury, summary dismissal of the complaint may be appropriate. Whether a limitation of use or function is significant or consequential relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of a body part.

It has been repeatedly held that “the mere existence of herniated or bulging discs, and even radiculopathy, is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration”.
Moreover, “a defendant who submits admissible proof that the plaintiff has a full range of motion, and that she or he suffers from no disabilities causally related to the motor vehicle accident, has established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), despite the existence of an MRI which shows herniated or bulging discs “.

In opposition to the motion and in support of his cross-motion, plaintiff submits, the parties’ deposition testimony; the police accident report. Contrary to plaintiff’s contention, he has not raised a triable issue of fact as to whether he sustained a serious injury as defined by Insurance Law §5102(d). The affirmations from plaintiff’s chiropractors lack probative value as they are not in proper form. Moreover, these chiropractors do not set forth any foundation or objective medical basis supporting the conclusions they reached.

The remaining submissions of plaintiff, which consisted of unaffirmed magnetic resonance imaging reports of plaintiff’s lumbosacral spine and cervical spine injury is also without probative value as they are unaffirmed. In addition, plaintiff failed to explain or address the prolonged gap in medical treatment. Finally, plaintiff has not sustained his burden under the 90/180 day category which requires plaintiff to submit objective evidence of a “medically determined injury or enforcement of a non-permanent nature which prevents the injured person from performing substantially all of the natural acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury”. When construing the statutory definition of a 90/180 day claim, the words ‘substantially all’ should be construed to mean that the person has been prevented from performing his usual activities to a great extent, rather than some slight curtailment.”

Specifically, plaintiff has no admissible medical reports stating that plaintiff was disabled, unable to work or unable to perform daily activities for the first ninety (90) days out of one hundred eighty (180) days, Plaintiff is only able to proffer his own self-serving proof that he missed 3-4 days of work; that he couldn’t go swimming in the ocean while on a working trip to Mexico; that he couldn’t go mountain biking anymore; or exercise as frequently as he used to.
In light of our determination, plaintiff’s motion for summary judgment on the issue of liability has been rendered moot. Accordingly, the Court held that the plaintiff’s motion is denied. The Defendant’s motion is granted. It is hereby ordered, that the plaintiff’s Complaint is dismissed.
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A Bronx man suffered serious as the result of an automobile accident. He was taken to a Hospital where he was evaluated by several physicians, including a surgeon, an orthopedist, and a radiologist. These physicians misinterpreted the man’s x-rays and radiological studies and negligently concluded that he did not suffer a recent spinal injury. As a result, the attending surgeon and assistant encouraged him man to attempt to walk approximately a week after the accident. When he arose from the bed, he felt a shock and collapsed. He was transferred to a Manhattan Medical Center where he underwent surgery on his spine. However, the surgery was unsuccessful in reversing the spinal column damage.

The man retained a law firm to investigate and initiate a medical malpractice action against the various physicians. Although the man’s counsel considered joining the Hospital physicians individually in the medical malpractice suit, for various reasons he decided not to join them and sent intent to sue only to the Hospital and Medical Center Regional and its physicians. When the complaint was filed, however, the Hospital was not named. During discovery, the man’s counsel realized that the Medical Center Regional’s defense was based upon the comparative fault of the Hospital and its physicians. At this point, the statute of limitations had expired, and the counsel realized the potential of a legal medical malpractice claim for failing to join them. The counsel contacted his insurance company. He also referred the man to a new counsel. The man settled with the Medical Center Regional and its physicians for $1,000,000, and then brought a legal medical malpractice action against his counsel and his firm, which the man’s insurance company agreed to settle for the policy limits. However, the parties disputed whether the “per claim” amount applied or whether the aggregate amount applied. Specifically, the parties disputed whether the attorney’s failure to name the Hospital and each individual physician constituted independent wrongful acts or a single claim.

The man filed a declaratory judgment action to determine the issue. He claimed that the policy provided $250,000 per wrongful act with a $500,000 aggregate for multiple wrongful acts. Because his counsel committed multiple wrongful acts, he claimed that he was entitled to the aggregate limits. The counsel’s insurance company argued that the policy was a claims-made policy and that the policy provided $250,000 per claim rather than per wrongful act. Since there was only one claim, the man was entitled to only $250,000 in coverage. The trial court agreed with the man and on its motion for summary judgment, the court entered a judgment in favor of the man for the aggregate limits. The counsel’s insurance company appeals this judgment.

The insurance policy in question is a claims-made policy which covers claims made against the insured during the policy period. Specifically, the policy provides that it will pay on behalf of an insured all sums an insured must legally pay as damages because of a wrongful act that results in a claim first made against an insured and which is reported to the insurance company in writing during the policy period.

Claim means a demand received by the insurance company or an insured for money or services while wrongful act means any negligent act, error or omission arising out of professional services rendered or that should have been rendered by an Insured.

The construction of an insurance policy is a question of law for the court. Such contracts are interpreted in accordance with the plain language of the policy, and any ambiguities are liberally construed in favor of the insured and strictly against the insurer as the drafter of the policy. A policy is ambiguous where it is susceptible to two or more reasonable interpretations. However, a policy is not ambiguous merely because it is complex and requires analysis to interpret it.

The man contends the aggregate policy limit should apply where his attorney committed multiple wrongful acts by failing to join several accused parties in his medical malpractice action. Because each of these accused had separate insurance coverage available to pay a damage award, the man argues he had multiple claims against his attorney. However, the counsel’s insurance company asserts that the man has only a single claim because he suffered one injury – he did not receive his full recovery because the attorney failed to join all the proper accused parties before the statute of limitations tolled. Even if the failure to sue each accused is considered a wrongful act, the counsel’s insurance company argues these wrongful acts are related to the man’s sole medical malpractice claim against his attorney.

The counsel’s insurance company’s interpretation of the policy is consistent with the policy language. A claim under the policy is a demand against the insured for money. In this case, there was but one demand for money, namely the lost recovery because of the failure to join various other accused parties and thus one claim. Even if the man had multiple claims against his attorney the “per claim” limit still applies where the claims arise out of the same or related wrongful acts.

The court considered whether two acts of negligence were related so that notice of the first act constituted timely notification of both alleged acts of negligence. The man’s first claim of insurance agency negligence was for the agency’s failure to procure primary insurance coverage. It then later claimed that the agency was negligent in failing to notify an excess carrier of a third party claim against the insured.

Courts have pronounced different analyses in determining what constitutes a related act. Under the analysis of the State Supreme Court, however, the question appears to be whether each of the claimed negligent acts contributes to, or causes, the same monetary loss. If the errors lead to the same injury, under the Supreme Court analysis, they are related. Under the analysis of the United States District Court, acts will not be related if they arise out of separate factual circumstances and give rise to separate causes of action.

In this case, the claim was for the entire amount of the man’s uncollected damages as a result of the failure to join several accused parties in the suit, and all of the acts of negligence caused or contributed to the inability of the man to collect the entire amount of his damages. Thus, the negligent acts were logically related in accordance with the policy definitions.

In a related case, the contractor attempted to argue that there were two claims because it had two sources of payment. Supreme Court rejected the argument and stated, that when, as in this case, a single client seeks to recover from a single attorney alleged damages based on a single debt collection matter for which the attorney was retained — there is a single claim under the attorney’s professional liability insurance policy. Applying that rationale to this case, the man retained an attorney to recover damages he incurred as a result of several physicians’ negligent conduct, but was unable to recover the full extent of his damages because of the attorney’s failure to include all the responsible accused parties in his action. The attorney’s negligent omission may be considered multiple wrongful acts, but the man suffered only one injury — an award that does not represent the full extent of his damages.

The Appellate Court agrees that the alleged wrongful acts of the attorney were related and resulted in a single claim. The Court therefore reverses and remands for entry of a declaratory judgment determining that the policy limit “per claim” and not the aggregate limit applies in this case.
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The Long Island complainant man went to the emergency room of a hospital complaining of weakness in his lower extremities and severe lower back pain. He had gone to the emergency room five days earlier complaining of left hip and back pain, and was sent home with pain medication. The pain persisted, and he began experiencing weakness in his legs, twice falling or nearly falling when his legs buckled. He was able to walk, though with difficulty. During his emergency room visit, radiographic tests, including a myelogram, were ordered, and the man was admitted to the hospital.

On the morning of 25 June 1994, the accused Manhattan anesthesiologist explained to the complainant man that he would need to administer a caudal block rather than general anesthesia for the myelogram because the man needed to be awake during the test. The radiologist performed the myelogram around 3:00 p.m. that day. The next morning, the man discovered he felt no pain, was numb from his hips down, and could not move his legs. The anesthesiologist and the nursing staff blamed the numbness and inability to move on the anesthesia, telling the man it had not yet worn off. The man thought this was strange because, in his experience, it usually took only four to five hours for the effects of anesthesia to wear off. He thought either something had gone wrong or his condition was worse than the doctors originally thought.

The myelogram revealed massive disc herniation causing spinal injury, and the accused man’s attending physician and neurologist advised the man that he urgently needed surgery. The neurologist performed a laminectomy and discectomy. However, the man remained paralyzed following the surgery.

He was discharged from the hospital on 1 July 1994 and had six subsequent office visits with the neurologist. On 3 August 1994, the man visited another doctor complaining of left shoulder pain. The doctor’s notes from that initial visit state that the man had back surgery about five weeks ago. He is paralyzed from the waist down. He states that he is paralyzed from a myelogram.

On 8 June 1995, the man served the neurologist with a notice of intent to initiate medical malpractice litigation and subsequently filed suit on 4 October 1995. The complainant man did not serve the attending physician, the anesthesiologist, the radiologist, and their employers with a notice of intent to initiate litigation until 3 January 1997. On 9 May 1997, he amended the complaint against the neurologist to add the attending physician and the others as accused.

The accused parties moved for summary judgment, arguing that the man served the notice of intent beyond the limitations period, and thus, his action against them is barred. Ruling that the statute of limitations began to run no later than 3 August 1994, the date of the man’s visit and statement to his latest doctor, the trial court entered final summary judgment for the accused parties. The court noted that the man’s paralysis is the type of injury which should start the limitations period running immediately. The man argues on appeal that the paralysis he suffered after undergoing the myelogram and surgery is not the type of injury which, standing alone, would have indicated that medical negligence possibly had occurred, thereby triggering the statute of limitations. He argues further there was a genuine factual issue regarding whether he told his latest doctor that he had been paralyzed from the myelogram or since the myelogram.

An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence.
The nature of the injury, standing alone, may be such that it communicates the possibility of medical negligence, in which event the statute of limitations will immediately begin to run upon discovery of the injury itself. On the other hand, if the injury is such that it is likely to have occurred from natural causes, the statute will not begin to run until such time as there is reason to believe that medical malpractice may possibly have occurred.

The evidence before the trial court showed the man was ambulatory before entering the hospital, though he was experiencing weakness in his legs and severe lumbar back pain. More than twelve hours after undergoing the myelogram, the man discovered he was still numb from his hips down and his legs were paralyzed. Although medical staff told him the numbness and paralysis were caused by the anesthetic which had not worn off, he reasonably suspected something was amiss because, in his experience, anesthetic effects dissipate in four to five hours. The man’s paralysis following the myelogram was sufficient to communicate the possibility of medical negligence. Therefore, the two-year statute of limitations began to run on or about 26 June 1994. As such, service of the notice of intent on 3 January 1997 occurred beyond the limitations period, and the man’s medical malpractice action against the accused is barred.
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An eighteen-year old resident of an apartment building was walking along the grounds of the apartment building in Florida when he met an accident. He lay on the concrete pavement, unable to move because of a spinal injury. A few minutes later, an employee of the apartment owner was making his rounds of the apartment. He saw the eighteen- year old sprawled on the pavement and thought that he was unconscious due to a drug overdose or because he was drunk. He shook the eighteen-year old and found him to be conscious. The Long Island employee told him that he will move him to a more lighted area so that he can help him. The eighteen-year old protested, asking the employee not to touch him or to move him as his spine may be broken. The eighteen-year old protested continuously but the employee did not heed his protests, he dragged the eighteen-year old near the entrance of the building. He then called emergency services who rushed the eighteen-year old to the hospital. When the police and emergency services arrived, the employee told the police that he moved the eighteen year old because he thought that he was just passed out because he was drunk or overdosed from drugs. He had no idea he was injured. The incident resulted in the eighteen-year old being disabled due to quadriplegia or paralyzed from the neck down.

The eighteen-year old then sued the apartment owner and his insurer. He did not include in the suit the employee of the apartment owner. He wanted to call him as an adverse witness because the employee made inconsistent statements before the police (at the time of the incident) and then when he was deposed (before the trial) which testimonies and statements totally contradicted his testimony at trial. The trial court refused the eighteen year old’s request to call the employee as an adverse witness. The trial court held that there was a question as to whether the employee was really employed by the apartment owner; the trial court also held that the employee could not be called as an adverse witness because he was not a party to the case or listed as a party defendant in the damage suit.

The apartment owner and the insurer based their defense on the Good Samaritan Act. They claim that the employee was immune from a suit in damages because he was only trying to help. Under Florida Law, bystanders who help those who were injured cannot be sued for damages if the person they aided suffered injury in the course of being rescued or aided. They also claimed that even if they were found to be liable the amount of lost earning capacity of the eighteen year old cannot be determined because the eighteen-year old was a career criminal who had no real job or job prospects as he dealt in drugs and petit larceny,

The trial court also refused to allow the testimony of the expert witness for the eighteen year old. The proposed expert testimony was from a doctor who had experience in rehabilitation medicine specializing in those with spinal injuries. He treated and examined the eighteen-year old and supervised his physical therapy. His testimony was proffered but it was not admitted as evidence for the eighteen year old who tried to prove that it was not the injury that caused the quadriplegia but it was the dragging of his injured body down the pavement from where he was injured to the entrance of the building that resulted in his disability.

The jury found for the defendant apartment owner and insurer, claiming that they had no liability to pay damages to the eighteen year old as their agent merely tried to help him. The eighteen-year old appealed the jury verdict for the apartment owner.

The only question is whether or not the jury verdict for the apartment owner and the insurer are errors which can be cured by a re-trial.

The Court held that the trial court erred in not allowing the employee to be examined by the eighteen year old as an adverse witness. The employee, if he were truly an employee of the apartment owner instead of merely a bystander has interests that were adverse to that of the eighteen-year old. To protect his job, he would have to testify favorably to his employer. The employee, if he is not really an employee, may also be examined as an adverse witness because he made prior inconsistent statements to the police and then on deposition. The eighteen-year old had the right to examine the credibility of the employee and to sift through his varying pronouncements which were true and which were not.

The trial court erred in not allowing the Manhattan doctor to testify as an expert witness. He is board-certified as a physician specializing in rehabilitation of patients with spinal injury. He may have examined and treated the eighteen-year old and can thus give testimony of the injuries he diagnosed and the treatments he prescribed. But he is also an expert in his field and his testimony as an expert should have been admitted for the benefit of the jury who were laymen and unable to know from their common everyday experience what spinal injury are all about.
The evidence regarding the drug use and drug dealing of the eighteen-year old are relevant not to prove his credibility as a witness about his injures (the medical evidence proves his injuries). They are relevant to prove his earning capacity or lack thereof. At the re-trial, the jury should be instructed to regard the evidence of former drug dealing and petit larceny when the eighteen year old was only fourteen as evidence of his earning capacity and not evidence of his injuries or of his credibility to testify as to his injury.

As for the apartment owner and his insurer, they can surely hide behind the provisions of the Good Samaritan Act but only if they can prove that the help they gave to the injured eighteen year old was requested by him and was not objected to by him. There is evidence that the eighteen year old continuously objected and protested his being dragged and moved from one place to another. His protests and objections went unheeded. For this alone, the Good Samaritan defense cannot be availed of. There is also the issue (which was not taken up) regarding the liability of the apartment owner and his insurer for injuries to third persons while on their property. Their liability in this regard cannot be ignored as it was.
The Court granted the eighteen-year old a re-trial.
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This involves a case where the court denied the motion of the defendants for summary judgment to dismiss the case against them.

Plaintiff alleged that, on June 16, 2007, he was injured when a New York City Transit Authority Bus driven by its employee made contact with a motor vehicle driven by defendant driver and owned by owner. Plaintiff was a passenger in defendant driver’s vehicle. By decision and order dated September 16, 2008, the court granted defendant owner’s motion to dismiss the complaint and any cross claims in this action as against it. (Martorella Affirm, dated 3/18/11, Ex E.)

The bill of particulars alleges that, as a result of this alleged car accident, plaintiff sustained herniated discs at C4-C7, and L5-S1, and injuries to his right hip, right arm, right shoulder, neck and back, some of which are believed or may be permanent in nature. (Martorella Affirm, dated 3/18/11, Ex C [Bill of Particulars ¶ 6].) In August 2008, plaintiff, who was represented by a law firm, apparently decided to represent himself. (Martorella Affirm, dated 3/18/11, Ex D.) Plaintiff testified at his deposition that, at the time of the accident, he was employed by Gotham Registry, a nursing agency, working per diem as a licensed nursing assistant.

Defendants essentially argue that plaintiff’s alleged spinal injuries are minor and not causally connected to the accident. In support of their motion for summary judgment, defendants submit the affirmed reports of a neurologist and an orthopedic surgeon. (Martorella Affirm, dated 3/18/11, Exs G, H.) Defendants also maintain that plaintiff’s alleged cervical and lumbar spinal injuries were pre-existing injuries, based on plaintiff’s deposition testimony and medical records.

The Manhattan neurologist examined plaintiff on August 25, 2008. According to her report, the examination covered areas such as “mental status,” “cranial nerves,” “motor examination,” “reflexes,” “sensory,” “gait and coordination,” and “cerebellar examination.” The neurologist also recorded the ranges of motion, expressed in degrees, and corresponding normal values, at plaintiff’s neck, and found full range of motion. The neurologist concluded that “exacerbation of preexisting spinal injury, resolved” and that “from a neurologic standpoint, there is no need for further treatment.” (Martorella Affirm, dated 3/18/11, Ex G.)

The Westchester orthopedic surgeon also examined plaintiff on August 25, 2008. The orthopedic surgeon recorded the ranges of motion, expressed in degrees, and corresponding normal values, in plaintiff’s cervical spine, right shoulder, lumbosacral spine, and right hip. The orthopedic surgeon found that plaintiff had normal ranges of motion in his right shoulder, lumbosacral spine, and right hip. He noted “slightly decreased range of motion of the cervical spine on flexion to 30 degrees (45 degrees normal), extension to 30 degrees (45 degrees normal), lateral bend to 35 degrees (45 degrees normal), right and left rotation to 50 degrees (70 degrees normal).” (Martorella Affirm, dated 3/18/11, Ex H.). The orthopedic surgeon stated, “In my opinion, I find the claimant has no disability.” (Id.)

According to the court, the defendants have not met their prima facie burden of summary judgment, based on the affirmed reports of the neurologist and orthopedic surgeon, who both did not state the objective methods used to measure plaintiff’s ranges of motion. “The defendant cannot satisfy that burden if it presents the affirmation of a doctor which recites that the plaintiff has normal ranges of motion in the affected body parts but does not specify the objective tests performed to arrive at that conclusion.” [“Defendants’ failure to indicate the objective tests used to determine the range of motion in plaintiff’s cervical spine was fatal to their efforts to establish a prima facie case for summary dismissal”].)
As defendants point out, the neurologist and orthopedic surgeon both noted under “Past Medical History,” that plaintiff was attacked/assaulted by a guard, sustaining injuries to his neck and back. However, neither the neurologist and orthopedic surgeon conclude that plaintiff’s alleged injuries were pre-existing in nature. Therefore, defendant’s contention that plaintiff’s injuries are preexisting is unsubstantiated.

Because defendants do not demonstrate, as a matter of law, that none of plaintiff’s injuries meet the No Fault threshold, “it is unnecessary to address whether his proof with respect to other injuries he allegedly sustained would have been sufficient to withstand defendants’ motion for summary judgment.” (Linton v Nawaz, 14 NY3d at 821.)
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